Health Law Daily Wrap Up, HEALTH CARE REFORM—S.D. Miss.: HHS final rule prohibiting gender-identity discrimination overstepped Title IX statutory authority , (Oct 24, 2025)

By Justin Marcus Smith, J.D.

The final rule could not be divorced from the prevailing biological meaning of “sex” at the time Congress passed Title IX to correct and prevent sex discrimination.

The United States Department of Health and Human Services (HHS) exceeded its authority when it implemented regulations (final rule) that redefined sex discrimination and prohibited gender-identity discrimination, held the federal district court in Gulfport, Mississippi. The states’ challenge to the final rule was ripe because the states had real concerns about enforcement and legal action. The court reasoned here that the dismissal HHS requested would have automatically forced HHS to comply with the rule; HHS would otherwise have to follow the Administrative Procedure Act (APA) to amend or withdraw the rule; and HHS arguments and actions in this case suggested it might even preserve some of the gender-identity provisions. The court granted the states’ summary judgment. HHS overstepped its authority because the word “sex” was grounded in biology and did not pertain to “gender” when Congress enacted Title IX in 1972. A key Title VII case was distinguishable. HHS did not explain what it would do on remand to HHS, and that made vacatur the appropriate remedy, but only for sections referring to gender identity. The court also granted the states a declaratory judgment that HHS exceeded its statutory authority (Tennessee v. Kennedy, Jr., No. 1:24-cv-00161-LG-BWR (S.D. Miss. Oct. 22, 2025)).

Background. Fifteen states asked the court to vacate portions of the May 6, 2024, HHS final rule and declare portions of the rule invalid. See HHS reinstates, strengthens ACA discrimination protections, (May 6, 2024); Dept. of Health & Human Servs., Nondiscrimination in Health Programs and Activities, 89 Fed. Reg. 37522 (May 6, 2024). HHS adopted the final rule pursuant to the Affordable Care Act of 2010, 42 U.S.C. § 18116(a) (Section 1557), which incorporated Title IX, 20 U.S.C. § 1681(a), by reference. The final rule amended 42 C.F.R. §§ 438, 440, 457 and 460 and 45 C.F.R. §§ 80, 84, 92, 147, 155, and 156. The states only challenged the amendments to the extent they addressed gender-identity discrimination.

The final rule set the scope of discrimination on the basis of sex to include gender identity. The rule also prohibited state health benefit exchanges, Medicaid and Medicare recipients, and others from denying or limiting gender transition health services and affirming care if keyed to an individual’s “sex assigned at birth, gender identity, or gender otherwise recorded.” 45 C.F.R. § 92.206(b)(4) (2024); see also 45 C.F.R. § 92.4 (2024). The court said HHS relied on the Supreme Court’s reasoning in Bostock v. Clayton County, 590 U.S. 644 (2020), when it authored and proposed the rule. The court footnoted the states had abandoned a similar challenge to HHS inclusion of “sexual orientation” in the rule definition of sex-discrimination.

In July 2024, the court granted the states a preliminary injunction that prohibited HHS from enforcing the rule’s provisions concerning gender-identity discrimination (See Court issues nationwide injunction blocking enforcement of section 1557 antidiscrimination rule (Jul. 8, 2024)). The court also stayed the effective date of the rule with respect to gender identity. The Trump administration later issued two executive orders that directly conflicted with the HHS rule (See Defending Women from Gender Ideology Extremism, Exec. Order 14,168, 90 Fed. Reg. 8615 (Jan. 20, 2025); Protecting Children from Chemical and Surgical Mutilation, Exec. Order 14,187, 90 Fed. Reg. 8771 (Jan. 28, 2025)). HHS then asked the Fifth Circuit to stay the HHS appeal of the preliminary injunction so the new administration could familiarize itself with the case. From there, the parties agreed to dismiss the appeal; the states moved for summary judgment; and HHS filed a cross-motion to dismiss on the basis the case was not ripe.

The court found recent developments on the question of ripeness meant it did not need to reconsider its prior determination that the states had standing to challenge the rule. Like standing, the ripeness doctrine is also under Article III. The ripeness doctrine prohibits premature or speculative lawsuits.

Ripeness. The court found the states’ concerns were not premature, abstract, or contingent. The threat of enforcement and legal action was real; therefore, the lawsuit was ripe for a decision. The court accordingly denied the HHS cross-motion to dismiss.

First, the court reasoned the states posed a pure question of law about HHS authority to promulgate the rule. There was no need for additional fact-finding. The court also found the rule fit for judicial review because it was a final rule HHS promulgated through formal notice-and-comment after announcement in the Federal Register.

The court noted next that HHS certainly had to engage in APA rulemaking to repeal or amend the rule. HHS probably could not even postpone enforcement without either countermanding rulemaking or relief pending review under 5 U.S.C. § 705, and the latter would not apply if the court granted HHS dismissal of the case.

HHS argued the hardship element of ripeness did not pertain because, despite the two executive orders, the states could not argue any threat of compliance costs or loss of federal funds under the rule. The court said that argument was not persuasive because the Defending Women Executive Order required HHS to remove all regulations that “promote” or “inculcate” “gender ideology” while the Protecting Children Executive Order required agencies to end “chemical and surgical mutilation of children[.]” HHS did not delineate corresponding efforts to comply with the two orders. Without elaboration, HHS said the rule remained under “consideration” at HHS. In any event, HHS, as the issuer of the rule, bound itself to the rule until amended or revoked pursuant to APA requirements. HHS would have to comply with the APA.

Some HHS arguments and actions in this case suggested that HHS might even preserve some of the gender-identity provisions in the rule. HHS did, after all, argue there should be no judicial review unless HHS were to start an enforcement action against any of the states. HHS also argued the court should not vacate the rule’s gender identity provisions. If HHS intended to comply with the executive orders, it could have filed a motion for voluntary remand to rescind or amend the rule. HHS could have taken other steps under 5 U.S.C. § 705, but it did not do so. A dismissal of this case would automatically dissolve the preliminary injunction and require HHS to immediately comply with the rule. Citizens could then initiate civil proceedings against the states for gender-identity discrimination. For all of the above reasons, the court found the rule ripe for review. The court denied dismissal.

Summary judgment. The court held HHS exceeded the scope of its statutory authority when it expanded the Title IX phrase “on the basis of sex” to include “discrimination on the basis of gender identity.”

The court said it must apply the meaning of “sex” at Title IX enactment in 1972 because the statute did not define it. After consulting the contemporaneous Black’s Law Dictionary and Webster’s dictionaries, the court found the term “sex” generally referred to biological sex at the time of enactment.

Next, the court noted HHS did not exactly define “gender identity” when it issued the rule. It even declined to do so because individuals use varying terminology to describe it. The court found HHS correctly distinguished between “sex” and “gender identity” when it issued the rule.

Having distinguished the word “sex” and the phrase “gender identity” as non-synonymous in the instant Title IX context, the court said it had to address the HHS position that the Bostock trait analysis of Title VII sex discrimination should apply to Title IX sex discrimination. Importantly, the instant court said Bostock did not purport to address other statutes about sex discrimination. Recently, Skrmetti distinguished Bostock in the context of gender-affirming care and the Equal Protection Clause of the Fourteenth Amendment. See United States v. Skrmetti, 145 S. Ct. 1816, 1834–35, 222 L. Ed. 2D 136 (2025). The court said Skrmetti was instructive here because the disputed rule required gender-affirming care the covered entity would ordinarily provide for other purposes, like a medical diagnosis, not sex. The court said care refusals in the context of the rule were not based on sex. The Eleventh Circuit also recognized that Bostock was distinguishable because Title IX, unlike Title VII, includes express carve-outs for differentiating between the sexes on things like separate living and bathroom facilities. Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 798 (11th Cir. 2022). The court reasoned the carve-outs would be meaningless if “sex” meant “gender identity.”

In conclusion here, Bostock did not support a finding that denial of healthcare based on gender identity necessarily constitutes sex discrimination. The states were therefore entitled to summary judgment.

Vacatur remedy. The court held rule vacatur was the appropriate Fifth Circuit remedy in this context. First, HHS did not explain how it would correct the rule on remand. Second, vacatur would not cause disruption because the rule had not yet gone into effect. Moreover, universal vacatur was the appropriate remedy because the rule applied to numerous healthcare providers throughout the country and exceeded HHS statutory authority. The court said the Fifth Circuit has held the APA does not limit the scope of vacatur to the parties.

The rule had a severability provision, but the parties disagreed which portions of the rule exceeded HHS statutory authority. The court agreed that vacatur was not necessary for provisions that did not discuss gender identity or specifically cite regulations related to it. The court confined vacatur to the following regulations to the extent that they expanded Title IX’s definition of sex discrimination to include gender-identity discrimination: 42 C.F.R. § 438.3(d)(4), 42 C.F.R. § 438.206(c)(2), 42 C.F.R. § 440.262, 42 C.F.R. § 460.98(b)(3), 42 C.F.R. § 460.112(a), 45 C.F.R. § 92.101(a)(2)(iv), 45 C.F.R. § 92.206(b)(1)–(4), 45 C.F.R. § 92.207(b)(3)–(5), 45 C.F.R. § 92.8(b)(1), 45 C.F.R. § 92.10(a)(1)(i), and 45 C.F.R. § 92.208.

Declaratory relief. The court granted a declaratory judgment that HHS exceeded its statutory authority when (1) it interpreted Title IX, as incorporated into Section 1557, to prohibit discrimination based on gender identity; and (2) when it implemented Section 1557 regulations concerning gender identity and “gender affirming care.” The court did not reach arbitrariness or capriciousness under the APA, and it reasoned the states’ proposed declaration related to federal financial assistance was overly broad.

The case is No. 1:24-cv-00161-LG-BWR.

Judge: Guirola, L.

Attorneys: Steven James Griffin, Office of the Attorney General, for State of Tennessee. Scott G. Stewart, Mississippi Attorney General's Office, for State of Mississippi. Alexander Barrett Bowdre, Office of the Attorney General, for State of Alabama. Stephen John Petrany, Office of the Attorney General, for State of Georgia. James A. Barta, Office of the Attorney General, for State of Indiana. James R. Rodriguez, Office of the Attorney General, for State of Kansas. Justin D. Clark, Office of the Attorney General, for Commonwealth of Kentucky. Kelsey L. Smith, Office of the Attorney General, for State of Louisiana. Lincoln J. Korell, Office of the Attorney General, for State of Nebraska. Mathura J. Sridharan, Office of the Attorney General, for State of Ohio. Garry M. Gaskins, II, Office of the Attorney General, for State of Oklahoma. Thomas T. Hydrick, Office of the Attorney General, for State of South Carolina. Jonathan K. Van Patten, Office of the Attorney General, for State of South Dakota. Kevin Michael Gallagher, Office of the Attorney General, for Commonwealth of Virginia. Michael Ray Williams, Office of the Attorney General, for State of West Virginia. James Earl Graves, III, U.S. Attorney's Office, for Robert F. Kennedy, Jr., U.S. Department of Health and Human Services, Paula M. Stannard, Centers for Medicare and Medicaid Services and Mehmet Oz.

MainStory: TopStory CaseDecisions CMSNews CoverageNews GCNNews GeneralNews HealthReformNews MedicaidNews PartBNews ReproductiveHealthCareNews MississippiNews